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MEMBER DIARY

The Supreme Court and Three Cases They Decided Not To Take On

On Monday March 19, the Supreme Court denied three cases of interest- two involving religion in the abstract and another involving reapportionment and the census. The latter is a case being pursued by the state of Louisiana which seeks to invalidate the 2010 Census results. They claim that is inherently unfair and unconstitutional to count illegal immigrants as part of the population for reapportionment purposes. They filed the claim directly with the Supreme Court instead of adjudication in a lower court. Louisiana contends that non-immigrant foreign nationals- illegal immigrants- are not permanent residents of any state. Because there is not uniform distribution amongst the states of these people, their presence in certain states disadvantages states with low illegal immigrant populations. Using a statistical method, they determined that if illegal immigrants were removed from the census, they would be entitled to seven House seats- the number they held before the census (they lost one and are down to six).

Louisiana argues that each district in that state will represent 748,160 voting age individuals as compared to California where each district will have 656,452 such individuals. Thus, Louisiana argues that represents a 14% decrease in Louisiana’s electoral power. They argue that the Constitution’s requirement to count “persons” only recently allowed for illegal immigrants to be counted. They use the analogy that tourists in a state are not counted as “persons,” nor are “corporate persons” for purposes of the census. Illegal immigrants, they assert, should not count as legal permanent residents of any state.

Their argument does make intuitive sense but for the words of the Constitution wich states the word “persons.” However, as the state correctly points out, the counting of illegal immigrants, or more correctly- the bureaucratic decision to do so- is fairly recent in our history. Before anyone diss the Supreme Court for not granting this case, the main reason for doing so is that it came to the Court as a original jurisdicional matter. Granted, they could have taken the case and appointed a special master, but declined to do so. However, nothing in denial to hear the case via this method precludes Louisiana from pursuing the argument in the lower courts. Of course, given the pace of the judicial system, that is little consolation to Louisiana this year or probably next. The issue may very well end up in front of the Court at some future date.

The second case denied review involved a sexual abuse case against the Catholic Archdiocese of St. Louis. There the lower courts dismissed the suit and he appealed to the Missouri Supreme Court which affirmed the summary judgment of the trial court to dismiss the case. Sparing the nuances of the applicable tort protocols involved, the main thrust involved the part of the complaint that the Church should have supervised their clergy and their failure to do so amounted to the tort of negligence. Here, the Missouri Supreme Court decided that there were serious First Amendment implications. In their decision, they stated: “The Supreme Court has held questions of hiring, ordaining and retaining clergy necessarily involve interpretation of religious doctrine, policy and administration and such excessive entanglement between church and state has the effect of inhibiting religion…”

When the Court declines to hear a case, the lower court’s opinion is effectively affirmed. Hence, the decision of the Missouri Supreme Court stands, including their interpretation of the First Amendment implications. At this point, the reader should realize that if such an issue as sexual abuse by clergy and the church’s responsibility in the sphere of torts and how the church handles or should have handled the issue is one of religious doctrine, how can a mandatory dictate to offer contraceptive health care coverage of religious institutions not violate the First Amendment? Contraception and a religion’s doctrine regarding it is clearly more indicative and deeply rooted in religious doctrine than the Missouri case. This only underscores the original arguments in that whole controversy that HHS’ dictates under Obamacare is not, as Liberals and Democrats contend, a “war on women.” It is, however, an attack on religion and a serious intrusion into church affairs and doctrine using the heavy hand of government. That issue may very well one day end up before the Court and lest anyone here believe that the Obama appointees to the Court will reach a liberal conclusion, the recent decision in the Hosanno Tabor Church case might be a better indication. In that case, Justice Sotomayor was particularly brutal in her questioning of the government’s arguments. She, along with Kagan and indeed the entire Court, ruled 9-0 against the government’s argument citing the start of a possible dangerous intrusion of the government in religious affairs. That case, incidentally, involved a wrongful discharge complaint by a teacher in a religious school (although she taught a secular subject) to the EEOC. All the facts are left out here because they are too numerous, but the gist of the ruling still stands.

The final case denied involved a fraternity/sorority at San Diego State University that attempted to gain official campus sanctioning that apparently affords the groups special privileges like an office, free or reduced pricing for rooms, and other such things. The reason they were denied sanctioning is that they are a religious fraternity and sorority that require members to sign a pledge that, among other things, states that they believe in “Jesus, our Savior.” The liberal Ninth Circuit denied the groups partially on their appeal stating that the university system’s anti-discrimination was facially neutral with respect to enforcement and that policy prefers an “all comers” stance. The part of the suit the Ninth Circuit is allowing to go forward is the accusation that the groups are specifically being denied sanctioning because of their religious beliefs and the Circuit Court stated that there may actually be some prima facie support, but that is for a trier of fact to determine.

In reality, the US Supreme Court, based on precedent, was likely to reject the appeal based on previous rulings in this area, specifically the case involving similar claims against Hastings Law School. There the Supreme Court ruled that as long as a university’s anti-discrimination was facially neutral, enforcement was constitutional. The problem with many of these cases of “facial neutrality” is that we all know that in actuality certain groups tend to be excluded. It seems strange that religious groups tend to bear the brunt of such exclusions. However, it is sort of a two-way street. In the other case mentioned involving the Archdiocese of St. Louis, the higher court said that allowing a suit to go forward that would hold the church’s leadership responsible for the actions of a priest would necessarily involve getting into the operations and, ultimately, beliefs of a church. There, they found that it would create an entanglement between church and state in violation of the First Amendment’s “free exercise” clause. In this case, it is an “establishment” case more than a free exercise case.

I fully realize that when the Constitution was written, there certainly was great entanglement between church and state. This nonsense of “no moment of silence in a classroom” and removing “In God We Trust” from money movement is all relatively new in Supreme Court jurisprudence and, I might add, an over-reaction to a single paragraph in a letter written by Thomas Jefferson. There was a reason Jefferson was shipped off to France when the Constitution was written. And past Courts have failed to use commonsense and history in their decisions. However, going with what we have, no matter how wrongly decided, the Supreme Court had little choice other than to deny the appeal especially since the case roughly paralleled that of Hastings. Still, it is surprising that the liberal Ninth Circuit is allowing these groups to pursue the targeted enforcement aspects of their case in the lower courts although any result one way of the other will likely end the issue back before the Circuit Court and possibly the Supreme Court at a much later date.